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Trump and trademarks: Melania First!

06-03-2017

First Lady Melania Trump has hired a lawyer in her native country Slovenia, to act against the unauthorised use of her name and image by third parties. Since her husband Donald Trump was elected as president of the United States, her name and image are being used on a variety of products without Melania’s permission.

In Slovenia, increasing amounts of products featuring the former model are being brought to market. For example, honey pots are being sold bearing labels with a picture of Melania and the caption "from the home garden of Melania Trump”. Other examples of products being sold are shoes, lingerie, cakes and even a salad bearing her name.

According to Slovenian law, the use of someone's name or photo without his or her consent is not allowed. A law firm instructed by Melania has therefore issued a press release as a warning to possible infringers. Her lawyer warned that it would be against the law and a violation of personal rights to use the name ‘Melania Trump’ for commercial purposes. However, so far, the First Lady hasn’t taken any further legal steps in Slovenia.

Melania – it's great
In the US, the First Lady has a number of trademark registrations: MELANIA for watches and jewellery, MELANIA for cosmetics and MELANIA TRUMP for jewellery and cosmetics.

The US Trademark Act states that trademarks which consist of the name or image of a person, without his or her consent, will be refused. This also applies to first names, abbreviated names, pseudonyms or titles that identify a particular living individual. PRINCESS KATE for example clearly refers to Catherine (Kate) Middleton and OBAMA PAJAMA is directly associated with former president Barack Obama. This means that if the owners of these trademark applications do not have consent, these trademark applications will likely be refused.

The Trademark Act further states that when using the name of a famous person as a trademark, and it is suggested that there is a link between the well-known person and the brand, this also warrants the refusal of an application. Last July, a third party tried to register MELANIA DIET in the US. The likelihood of confusion with the (at the time, possible next) First Lady was considered high as Melania Trump is known for her ‘health and fitness' image. Therefore, the registration of MELANIA DIET was refused by the USPTO.

Trademark applications containing the name Melania Trump or some other clear reference to the First Lady, are likely to be refused by the USPTO, unless the applicant can demonstrate that they have the consent of Mrs Trump.

The same cannot be said for trademark applications in the UK. “By contrast, the UK Trade Mark Registry will not object to the registration of a trademark on the basis that it is the name of a famous person,” explains Novagraaf’s Nora Fowler. “Instead, it is up to the celebrity to oppose the application and enforce his or her rights to their name and/or image. This can be difficult because, unlike in some other jurisdictions, including the US, in the UK ‘image rights’ (an individual’s right to prevent others from exploiting his or her name or image) are not explicitly protected.

Nora advises: “Celebrities are often keen to protect their names or images as registered trademarks themselves. This is because an opposition against a third-party trademark application or infringement actions against third party use can more easily be brought on the basis of an earlier registered right.

For further information on registering names as trademarks click here, or speak to your Novagraaf consultant.

Dominique Nijssen works in Novagraaf’s Competence Centre in Amsterdam.